Juarez v. Taco Bell

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 VICTOR CAMARGO JUAREZ, Case No. 3:24-CV-00462-MMD-CLB

5 Plaintiff, REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE1 6 v.

7 TACO BELL, et al.,

8 Defendants.

9 10 Before the Court is Plaintiff Victor Camargo Juarez’s (“Juarez”) application to 11 proceed in forma pauperis (ECF No. 4), his pro se civil rights complaint (ECF No. 1-1), 12 and a motion to exclude claims from arbitration, (ECF No. 5). The Court will address each 13 in turn. 14 I. IN FORMA PAUPERIS APPLICATION 15 A person may be granted permission to proceed in forma pauperis (“IFP”) if the 16 person “submits an affidavit that includes a statement of all assets such [person] 17 possesses [and] that the person is unable to pay such fees or give security therefore. 18 Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief 19 that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez v. Smith, 203 F.3d 20 1122, 1129 (9th Cir. 2000) (en banc) (stating 28 U.S.C. § 1915 applies to all actions filed 21 IFP, not just prisoner actions). 22 Pursuant to the LSR 1-1: “Any person who is unable to prepay the fees in a civil 23 case may apply to the court for authority to proceed [IFP]. The application must be made 24 on the form provided by the court and must include a financial affidavit disclosing the 25 applicant’s income, assets, expenses, and liabilities.” 26

27 1 This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. This action was referred to the undersigned Magistrate 1 “[T]he supporting affidavit [must] state the facts as to [the] affiant’s poverty with 2 some particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th 3 Cir. 1981) (quotation marks and citation omitted). A litigant need not “be absolutely 4 destitute to enjoy the benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 5 335 U.S. 331, 339 (1948). 6 A review of the application to proceed IFP reveals Juarez cannot pay the filing fee. 7 (See ECF No. 4.) Accordingly, the Court recommends that the IFP application be granted. 8 II. SCREENING STANDARD 9 Prior to ordering service on any Defendant, the Court is required to screen an in 10 forma pauperis complaint to determine whether dismissal is appropriate under certain 11 circumstances. See Lopez, 203 F.3d at 1126 (noting the in forma pauperis statute at 28 12 U.S.C. § 1915(e)(2) requires a district court to dismiss an in forma pauperis complaint 13 for the enumerated reasons). Such screening is required before a litigation proceeding 14 in forma pauperis may proceed to serve a pleading. Glick v. Edwards, 803 F.3d 505, 507 15 (9th Cir. 2015). 16 “[T]he court shall dismiss the case at any time if the court determines that – (A) 17 the allegations of poverty is untrue; or (B) the action or appeal – (i) is frivolous or 18 malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks 19 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 20 1915(e)(2)(A), (B)(i)-(iii). 21 Dismissal of a complaint for failure to state a claim upon which relief may be 22 granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 23 1915(e)(2)(B)(ii) tracks that language. When reviewing the adequacy of a complaint 24 under this statute, the court applies the same standard as is applied under Rule 12(b)(6). 25 See, e.g., Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for 26 determining whether a plaintiff has failed to state a claim upon which relief can be granted 27 under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) 1 on a question of law. See Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2 2000) (citation omitted). 3 The Court must accept as true the allegations, construe the pleadings in the light 4 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. 5 McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints 6 are “held to less stringent standards than formal pleadings drafted by lawyers[.]” Hughes 7 v. Rowe, 449 U.S. 5, 9 (1980) (internal quotations marks and citation omitted). 8 A complaint must contain more than a “formulaic recitation of the elements of a 9 cause of actions,” it must contain factual allegations sufficient to “raise a right to relief 10 above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 11 “The pleading must contain something more. . . than. . . a statement of facts that merely 12 creates a suspicion [of] a legally cognizable right of action.” Id. (citation and quotation 13 marks omitted). At a minimum, a plaintiff should include “enough facts to state a claim to 14 relief that is plausible on its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 15 678 (2009). 16 A dismissal should not be without leave to amend unless it is clear from the face 17 of the complaint the action is frivolous and could not be amended to state a federal claim, 18 or the district court lacks subject matter jurisdiction over the action. See Cato v. United 19 States, 70 F.3d 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th 20 Cir. 1990). 21 III. SCREENING OF COMPLAINT 22 In his complaint, Juarez sues his current employers, Taco Bell and Diversified 23 Restaurant Group, LLC (collectively referred to as “Defendants”), for employment 24 discrimination under the Americans with Disabilities Act (“ADA”) and for racial and sex 25 discrimination under Title VII of the Civil Rights Act. (ECF No. 1-1.) Juarez seeks 26 monetary damages. (Id. at 5.) 27 Juarez alleges the following: With respect to his Title VII claim, “[t]hroughout 1 present, [he has been] repeatedly subjected to a pattern of disparate treatment and 2 discrimination solely because of [] sexual harassment and ADA protected disabilities.” (Id. 3 at 3.) Juarez states he has been subjected to sexual harassment by Shift Lead Manager, 4 Maria, “who put her boob on [Juarez] and pressed it all on [Juarez’s] back in a manner 5 while we worked in the kitchen that was harmful and offensive to [him].” (Id.) Juarez 6 alleges he reported the sexual harassment to the Store Manager and Assistant Manager 7 on May 5, 2024. (Id.) Juarez also states he has been complaining in writing about sexual 8 harassment to the Store Manager since 2023 about a Crew Member “repeatedly touching 9 [Juarez’s] waist which was unwelcomed and a pattern.” (Id.) Juarez alleges the acts of 10 sexual harassment were never corrected by the Store Manager. (Id.) 11 With respect to his ADA claim, Juarez alleges that during his employment he was 12 able to perform the essential functions of his job satisfactorily. (Id. at 4.) Juarez has ADA 13 protected disabilities, which he states are diabetes, anxiety, and depression. (Id.) Juarez 14 alleges that Defendant Taco Bell was aware of his ADA protected disabilities, but he was 15 denied accommodations and reprimanded for requesting accommodations. (Id.) 16 Based on these allegations, Juarez asserts claims of discrimination based on his 17 race, sex, and disabilities. Each is discussed in turn. 18 A. Defendant Diversified Restaurant Group, LLC 19 Juarez names as a Defendant Diversified Restaurant Group, LLC located in Las 20 Vegas, Nevada, which appears to be Taco Bell’s corporate office. However, Juarez 21 makes no allegations against them in his complaint, accordingly Diversified Restaurant 22 Group, LLC should be dismissed, with leave to amend from this action. 23 B. Discrimination under Title VII 24 Title VII allows an individual to sue an employer for discrimination on the basis of 25 race, color, religion, gender, or national origin. See 42 U.S.C. § 2000e-5. Juarez alleges 26 discrimination on the basis of gender, and national origin. To establish a Title VII 27 discrimination claim, a plaintiff must allege: (1) he is a member of a protected class; (2) 1 an adverse employment action; and (4) similarly situated individuals outside of his 2 protected class were “treated more favorably, or other circumstances surrounding the 3 adverse employment action give rise to an inference of discrimination.” Hawn v. Executive 4 Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010) (citation omitted); see also 42 U.S.C. 5 § 2000e-3(e). An adverse employment action is one that materially affects the 6 compensation, terms, conditions, and privileges of employment. Davis v. Team Elec. Co., 7 520 F.3d 1080, 1089 (9th Cir. 2008). 8 At this time, Juarez fails to state either a sex or race discrimination claim. Juarez 9 does not provide the Court with sufficient factual allegations to show that he experienced 10 an adverse employment action that materially affected the compensation, terms, 11 conditions, and privileges of his employment, based on his sex, and/or race. In fact, 12 Juarez does not allege any discrimination based on his race. Accordingly, the Court 13 recommends dismissal of the Title VII discrimination claims, with leave to amend. 14 C. Employment Discrimination Under the ADA 15 The ADA makes it unlawful for employers to “discriminate against a qualified 16 individual on the basis of disability in regard to job application procedures, the hiring, 17 advancement, or discharge of employees, employee compensation, job training, and 18 other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). 19 Discrimination includes a failure to make “reasonable accommodations to the known 20 physical or mental limitations of an otherwise qualified individual who is an applicant or 21 employee, unless such covered entity can demonstrate that the accommodation would 22 impose an undue hardship” on an employer’s business operation. 42 U.S.C. § 23 12112(b)(5)(A). The ADA defines the term “disability” as: “(A) a physical or mental 24 impairment that substantially limits one or more of the major life activities of such 25 individual; (B) a record of such an impairment; or (C) being regarded as having such an 26 impairment.” 42 U.S.C. § 12102(2). A “qualified individual with a disability” is an 27 “individual with a disability who, with or without reasonable accommodation, can perform 1 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m). 2 An ADA discrimination claim can arise where an employer fails to reasonably 3 accommodate an employee’s disability. McGary v. City of Portland, 386 F.3d 1259, 4 1265–66 (9th Cir. 2004). To state such a claim, a plaintiff must allege (1) he is disabled; 5 (2) he is qualified; (3) he requested accommodation; (4) the employer knew of the 6 requested accommodation; and (5) the employer failed to reasonably accommodate 7 plaintiff’s disability. Sanders v. Arneson, 91 F.3d 1351, 1353 (9th Cir. 1996). 8 While Juarez alleges a disability and generally that he was not provided 9 accommodations, his complaint does not address what his requested accommodation 10 was or how his employer failed to reasonably accommodate him. Thus, he has not stated 11 a colorable ADA discrimination claim. Accordingly, the Court recommends dismissal of 12 the ADA discrimination claim, with leave to amend. 13 D. Leave to Amend 14 Consistent with the above, the Court recommends that Juarez be granted leave 15 to file an amended complaint to cure the deficiencies of the complaint. If Juarez chooses 16 to file an amended complaint, he is advised that an amended complaint supersedes 17 (replaces) the complaint and, thus, the amended complaint must be complete in 18 itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 19 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint 20 is irrelevant; an amended pleading supersedes the original”). Any allegations, parties, or 21 requests for relief from prior papers that are not carried forward will no longer be before 22 the court. Juarez should clearly title the amended pleading as “First Amended 23 Complaint.” For each claim, he must allege true facts sufficient to show that the 24 Defendant discriminated against him. Juarez may not amend the complaint to add 25 unrelated claims against other defendants. 26 The Court notes that, if Juarez chooses to file an amended complaint curing the 27 deficiencies, as outlined in this order, Juarez should file the amended complaint within 1 recommendation. If Juarez chooses not to an amended complaint curing the stated 2 deficiencies, the Court recommends dismissal of this action for failure to state a claim. 3 E. Motion to Exempt Claims from Arbitration 4 Finally, Juarez has filed a motion to exempt claims of sexual harassment from 5 arbitration, (ECF No. 5). Considering the Court’s recommendation of dismissal of 6 Juarez’s complaint, with leave to amend, the Court recommends that Juarez’s motion to 7 exempt claims from arbitration, (ECF No. 5), be denied as premature. 8 IV. CONCLUSION 9 For the reasons stated above, the Court recommends that Juarez’s IFP 10 application, (ECF No. 4), be granted, his complaint, (ECF No. 1-1), be dismissed with 11 leave to amend, and his motion to exempt claims from arbitration, (ECF No. 5), be denied. 12 The parties are advised: 13 1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of the Local Rules of 14 Practice, the parties may file specific written objections to this Report and 15 Recommendation within fourteen days of receipt. These objections should be entitled 16 “Objections to Magistrate Judge’s Report and Recommendation” and should be 17 accompanied by points and authorities for consideration by the District Court. 18 2. This Report and Recommendation is not an appealable order and any 19 notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the 20 District Court’s judgment. 21 V. RECOMMENDATION 22 IT IS THEREFORE RECOMMENDED that Juarez’s in forma pauperis application, 23 (ECF No. 4), be GRANTED. 24 IT IS FURTHER RECOMMENDED that the Clerk FILE the complaint, (ECF No. 1- 25 1). 26 IT IS FURTHER RECOMMENDED that the complaint, (ECF No. 1-1), be 27 DISMISSED, with leave to amend. 1 complaint curing the deficiencies of his complaint, as outlined in this order, Juarez shall file the amended complaint within 30 days from the date of entry of the District □□□□□□□ 3) order addressing this report and recommendation. 4 IT IS FURTHER RECOMMENDED that if Juarez chooses not to file an amended 5 | complaint curing the stated deficiencies, that this action be dismissed. 6 IT IS FURTHER RECOMMENDED that Juarez’s motion to exempt claims from 7 | arbitration, (ECF No. 5), be DENIED. 8 DATED: October 23, 2024. 9 » 10 1 UNITED STATES\MAGISTRATE JUDGE

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